Professional Documents
Culture Documents
AC Brief From HH Fan Society
AC Brief From HH Fan Society
21-869
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In The
Supreme Court of the United States
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COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
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TABLE OF CONTENTS
Page
Statement of Interest of Amicus Curiae .............. 1
Summary of the Argument .................................. 3
Argument ............................................................. 4
I. Fan Creativity and Fair Use...................... 4
II. Two Fanworks Under Two Versions of Fair
Use ............................................................. 10
A. Two Fanworks ..................................... 12
B. The Two Fanworks Under Campbell .... 14
C. The Two Fanworks Under Warhol ...... 18
III. This Second Circuit’s Disregard for Mean-
ing Is Inconsistent with This Court’s Deci-
sions, Inconsistent with the Decisions of
Other Circuits, Internally Inconsistent,
and Unworkable ........................................ 22
Conclusion............................................................ 29
APPENDIX
A Trekkie’s Tale ................................................... App. 1
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TABLE OF AUTHORITIES
Page
CASES
Andy Warhol Foundation for the Visual Arts, Inc.
v. Goldsmith, 11 F.4th 26 (2d Cir. 2021) ......... passim
Authors Guild v. HathiTrust, 755 F.3d 87 (2d Cir.
2018) ........................................................................20
Balsey v. LFP, Inc., 691 F.3d 747 (6th Cir. 2012) ........25
Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006) .............15
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569
(1994) ............................................................... passim
Dr. Seuss Enterprises, L.P. v. ComicMix LLC, 983
F.3d 443 (9th Cir. 2020) ...........................................25
Eldred v. Ashcroft, 537 U.S. 186 (2003) .............. 4, 8, 15
Folsom v. Marsh, 9 F. Cas. 342 (C.C.D. Mass.
1841) ........................................................................10
Google v. Oracle America, Inc., 141 S. Ct. 1183
(2021) ........................................................... 18, 24, 30
Kienitz v. Sconnie Nation, 766 F.3d 756 (7th Cir.
2014) ........................................................................27
Lucasfilm Ltd. v. Ainsworth, [2008] EWHC 1878
(Ch) ..........................................................................16
Núñez v. Caribbean International News Corp.,
235 F.3d 18 (1st Cir. 2000) ......................................25
Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992) .............19
Seltzer v. Green Day, Inc., 725 F.3d 1170 (9th Cir.
2013) ........................................................................25
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STATUTES
17 U.S.C. § 101 ............................................................22
17 U.S.C. § 107 ............................................................10
17 U.S.C. § 107(1) ........................................................26
17 U.S.C. § 107(2) ........................................................16
17 U.S.C. § 107(3) ........................................................26
17 U.S.C. § 107(4) ........................................................17
17 U.S.C. § 504 ............................................................29
OTHER AUTHORITIES
Anupam Chander and Madhavi Sunder, Every-
one’s a Superhero: A Cultural Theory of “Mary
Sue” Fan Fiction as Fair Use, 95 Cal. L. Rev.
597 (2007) ............................................................ 7, 12
Archive of Our Own, https://www.archiveofourown.org ........8
Betsy Rosenblatt, Belonging as Intellectual Cre-
ation, 82 Mo. L. Rev. 91 (2007) .............................. 6, 9
Betsy Rosenblatt, Fair Use as Resistance, 9 U.C.
Irvine L. Rev. 377 (2007) ...........................................8
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STATEMENT OF INTEREST
OF AMICUS CURIAE1
Honor Harrington is a heroic military commander,
expert personal combatant, and a wise mentor. Over
the course of her story arc, she rises from Commander
to Admiral, yeoman to Duchess, and alters the course
of her entire galaxy. Little wonder, then, that readers
of David Weber’s military science-fiction epics spend so
much time building out the world through additional
fiction, art, music, and so on.
That drive lead to the creation of The Royal Man-
ticoran Navy: The Official Honor Harrington Fan
Association, Inc. (“TRMN”)—a 501(c)(7) not-for-profit
corporation to serve as a nexus for fans of (copyright
holder) Weber’s series. From its beginning, the or-
ganization has been a home for people that creatively
express their enthusiasm for—and engage with—We-
ber’s work in different ways.
TRMN’s social interests stretch beyond just Honor
Harrington, though. It believes in and advocates for
the interests of other similarly situated fan organiza-
tions, as well as for the protection and advancement of
1
Pursuant to Rule 37.6, no counsel for a party authored this
brief in whole or in part, and no such counsel or party made a
monetary contribution intended to fund the preparation or sub-
mission of the brief. No person or entity other than the amicus
curiae, its members, or its counsel, made a monetary contribution
intended to fund its preparation or submission. This brief is filed
with the written consent of all parties pursuant to this Court’s
Rule 37.3(a). Copies of the blanket consent letters from all parties
have been filed with the Clerk.
2
ARGUMENT
I. Fan Creativity and Fair Use
The Royal Manticoran Navy: The Official Honor
Harrington Fan Association, Inc. is, as its name sug-
gests, a fan club. It is a group of people who share a
fondness for David Weber’s Honor Harrington books
and enjoy engaging in a range of activities that relate
to this series. In particular, TRMN is, as a group, best
known for engaging in “cosplay” (defined just below)
based on the characters and fictional universe Weber
created. TRMN also has a strong interest in supporting
its individual members as they participate in activities
within the broader science fiction and popular culture
fan communities, including other forms of fan creativ-
ity such as fan fiction.
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culture/archive/2020/02/surprising-18th-century-origins-
fan-fiction/606532/, and many authors, including Mark
Twain, indulged in Sherlock Holmes fan fiction in the
late 19th and early 20th Centuries. See Mark Twain,
A Double Barreled Detective Story, Harper & Bros
(1902). Even cosplay, which is often seen as a relatively
new form of fanwork, can trace its roots back at least
as far as the first World Science Fiction Convention in
1939. See Karen Hellekson, The Fan Experience, A
Companion to Media Fandom and Fan Studies 67,
67-68 (Paul Booth ed., 2018). The protection of these
works by current fair use law is not merely consistent
with the expectations that are based on Campbell. It is
also consistent with the long history of fanworks.
While there is little caselaw directly addressing
noncommercial fanworks, there is a broad academic
consensus that most noncommercial fanworks are
mostly covered by fair use most of the time. See gener-
ally, e.g., Tushnet, supra; Anupam Chander and
Madhavi Sunder, Everyone’s a Superhero: A Cultural
Theory of “Mary Sue” Fan Fiction as Fair Use, 95 Cal.
L. Rev. 597 (2007). This position is widely viewed as
consistent with existing case law on fair use, and in
particular on this Court’s decision in Campbell. Id.
The central holding in Campbell—that fair use is
favored where the new work “adds something new,
with a further purpose or different character, altering
the first with new expression, meaning, or message,”
510 U.S. at 579—fits well with how fanworks are used.
In addition to being creative works in their own right,
fan creations also serve valuable social functions. They
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million users and hosts over 9.4 million unique fan cre-
ations.
Put more directly, fair use has allowed millions of
people to develop a sense of community by participat-
ing in their creation and sharing. See Rosenblatt, Be-
longing as Intellectual Creation, supra. And they do so
not by replacing or supplanting the original works they
are associated with, but as a means of displaying their
authors’ feelings and attitudes about those originals.
See Pierre Leval, Campbell as Fair Use Blueprint, 90
Wash. L. Rev. 597, 611-12 (2015).
Fan creations are vehicles for conveying new
meanings and messages using the trappings provided
by the original pop culture works. Forbidding courts
from considering the meaning of visually similar
works will drastically reduce the likelihood that fan
creations will be found to be fair use. This will create
substantial legal uncertainty for millions of individu-
als. It will reduce their ability to participate in popular
culture and to express themselves through the use of
cultural references. It will, in effect, remove the legal
protection of fair use, and leave users’ ability to engage
in noncommercial expressive uses of works subject to
the whims of copyright owners.
The immediate question in this case is whether
the use of one work of art as a starting point in the
creation of a second work of art is fair use. However,
the reasoning employed by the Second Circuit to re-
solve this case will, if endorsed by this Court, reach
much further. The application of the new rule will
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A. Two Fanworks
Paula Smith’s fanfiction short story, A Trekkie’s
Tale, was published in the Star Trek fanzine Menag-
erie in 1973. This story, which has been reproduced in
full in the Appendix to this brief, is a work of Star Trek
fan fiction featuring Lt. Mary Sue, a young officer who
works her way into the hearts of the ship’s crew and
saves the ship before her tragic and untimely death. A
Trekkie’s Tale is short, even by fanfiction standards,
but it has become iconic in its own right. See, e.g.,
Susana Polo, “Why the Mary Sue” The Mary Sue,
https://www.themarysue.com/why-the-mary-sue/ 27
Feb. 2011 (using “Mary Sue” as the name of the website
to “re-appropriate a cliche that is closely but only cir-
cumstantially associated with femininity on a website
for geek girls”).
This 306-word story is clearly not actually in-
tended to be a work of Star Trek entertainment.
Rather, it is a form of commentary on what the au-
thor perceived as the state of Star Trek fan fiction at
the time, and in particular on the perceived preva-
lence of overly-idealized characters such as the story’s
protagonist within the genre. It started a conversation
on such characters that continues to the present, and
the name of the protagonist—“Mary Sue”—is now
(sub-)cultural shorthand for similar characters. The
story has also become fodder for extensive academic
work on fan creativity. See, e.g., Chander and Sunder,
supra. The story has a form that is similar to Star Trek
fiction, at least at a high level of generality, but a mean-
ing that is radically different.
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Figure 1
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the first factor test from one focused on the nature and
meaning of the new work to one that examines only the
techniques used to create it. But there are only so
many techniques in the world. Indeed, it is hard to im-
agine how 2 Live Crew’s sampling of the “Oh, Pretty
Woman” guitar riff would be fair use under the panel’s
novel test.
Similarly, under the panel’s test, it is at best un-
clear if either A Trekkie’s Tale or the Carpet Storm-
trooper would still be viewed as transformative. It is
possible that these works will be seen to comment, in
part, on the original, but this is far from certain. De-
tecting commentary can itself require that the court
exercise aesthetic judgment.
Aside from the most explicit of parodies, such as
the retelling of Gone with the Wind at issue in Suntrust
Bank v. Houghton Mifflin Co., 268 F.3d 1257 (11th Cir.
2001), it is not always easy to determine whether a
work will be seen to comment on the original. For ex-
ample, a series of fan made films that draws its humor
from its juxtaposition of absurd conversations against
the grim world of the video game it draws from might
be viewed as commenting on that video game. How-
ever, it is equally possible that the commentary here,
as in Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992),
would be viewed as a comment on the general genre
rather than the specific work. See J. Remy Green, All
Your Works Are Belong to Us: New Frontiers for the
Derivative Work Right in Video Games, 19 N.C. J.L. &
TECH. 393, 417-22 (2018).
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CONCLUSION
Amicus’s interests and experience are in the pop-
ular culture arena, not fine art. It takes no position on
whether one artist’s use of another artist’s photograph
as the basis for the creation of a new and distinct work
of art is fair use. In fact, it is not certain that correcting
the Second Circuit’s approach to the first fair use fac-
tor, reinforcing the importance of meaning to the anal-
ysis, and remanding the case for further proceedings
would necessarily result in a change to the outcome of
this case. It is possible, for example, that a shift in
meaning from “Prince, vulnerable” to “Prince, iconic” is
not enough of a change in meaning, particularly in
combination with the commercial purpose of the new
work, to permit the first factor to favor fair use. See,
e.g., Campbell, 510 U.S. at 579 (“the more transforma-
tive the new work, the less will be the significance of
other factors, like commercialism, that may weigh
against a finding of fair use”). It is also possible that,
even if the shift in meaning results in the first factor
favoring the Prince series, the potential effect on the
existing market for depictions of Prince might offset
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that, and the total analysis might not favor fair use.
The first factor is, after all, not outcome-dispositive in
and of itself; all the factors should play a role in the
analysis.
But the test is wrong in a way that will sow chaos.
Thus, amicus merely urges this Court to answer the
question presented, “whether a work of art is ‘trans-
formative’ when it conveys a different meaning or mes-
sage from its source material,” Cert. Pet. at i, in the
affirmative. The meaning-centric approach to the first
fair use factor utilized by this Court in Campbell and
Google, and by the Circuit Courts of Appeals in many
other cases has allowed millions of works of fan fiction,
fan art, and memes to blossom. This result has served
valuable social functions, and it has served the consti-
tutional purposes of incentivizing the creation of new
works. It should be preserved.
Considering the purpose, meaning, and message of
works is a critical part of determining whether a new
use of a copyright-protected work is intended to un-
fairly interfere with the limited grant of monopoly
privileges provided by copyright, see Sony Corp. of Am.
v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984),
or if it is the kind of transformative use that embodies
“the very creativity which that law is designed to fos-
ter.” Stewart v. Abend, 495 U.S. 207, 236 (1990). Identi-
fying works that use the original as a vehicle for
communicating new meanings to others—a purpose of
many fan creations—is consistent with fair use’s role
as one of copyright’s First Amendment safeguards.
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